258 N.C. 159 | N.C. | 1962
Each defendant assigns a single error — the refusal to allow his motion to nonsuit. Each asserts the evidence is insufficient to establish his negligence. Each asserts the evidence establishes as a matter of law plaintiff’s contributory negligence barring recovery.
The evidence would permit a jury to find these facts: The drivers agreed before the towing started that Whitney would warn Scarlette before Whitney reduced his speed. The agreed warning signal was the waving of a hand extended out of the window. Additionally Scarlette would be warned by the brake lights When pressure was applied to the brake pedal of the Whitney car. The towing operation had covered seventy-five miles or more before the accident occurred. The ears traveled at a maximum speed of 40 to 45 m.p.h. They passed over several bridges before reaching the Yadkin. Whitney always slowed down in approaching and crossing a bridge. Traveling eastwardly, as the cars were, there is a crest to a hill and then a decline to the bridge seventy-five to a hundred feet from the bridge there is a thirty-degree curve to the left. The paved portion of the highway is slightly wider than the bridge. As the ears approached the bridge, a truck, going west, was crossing the bridge. When within a few feet of the bridge, Whitney abruptly slowed his car without giving the agreed band signal. Scarlette swerved his ear and struck the side of the bridge. This collision caused plaintiff’s injuries.
Every operator of a motor vehicle is required to exercise reasonable care to avoid injury to persons or property of another G.S. 20-140. A failure to so operate proximately resulting in injury to another gives rise to a cause of action. Black v. Milling Co., 257 N.C. 730; Funeral Service v. Coach Lines, 248 N.C. 146, 102 S.E. 2d 816; Tatem v. Tatem, 245 N.C. 587, 96 S.E. 2d 725; Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355.
Undoubtedly the parties recognized towing the Scarlette vehicle in the manner described on much-traveled highways, U.S. 40 and 64, was not a normal operation. It called for more than ordinary alertness and caution on the part of each driver. 5A Am. Jur., Automobiles and Highway Traffic, s. 424. The Scarlette car was measurably under the control of the Whitney car. In recognition of that fact, the drivers agreed upon a system of signals to be given by Whitney which would permit Scarlette to conform his operation to the movement of the towing car'. The evidence is sufficient to warrant a finding that Whitnejr failed to give the agreed signal, and this failure was one of the causes of the collision.
The agreement with respect to signals did not, however, relieve Scarlette of his duty of keeping a proper lookout and controlling the movement of his car as best he could to avoid hazards which he observ
Whitney had invariably reduced his speed in approaching and crossing bridges before reaching the Yadkin. Scarlette was aware of that fact. Scarlette knew, when they approached the Yadkin, he was not far from his home and knew the conditions existing at the river crossing. He saw or should have seen the sharp curve to the left with the descending road and trucks meeting them. Knowledge of these facts should have warned him Whitney would be compelled to suddenly apply his brakes because he could not safely enter the bridge at a speed of 40 to 45 m.p.h. Was he as alert as he should have been under the existing conditions? The jury could well find that he was not.
The court properly submitted separate issues with respect to the negligence of defendants Whitney and Scarlette.
Does the evidence compel the conclusion that plaintiff was negligent? The answer is no. Whether she acted with reasonable prudence in riding in the towed vehicle was a question for the jury. Plaintiff’s situation was properly a matter for the jury to consider in arriving at the answer. She was on the highway with three children, the oldest only six years of age. It does not appear what experience, if any, she had in operating automobiles. What was there to compel her to conclude that the operation could not be made in safety if each driver was cautious? Two stops were made in the seventy-five miles that the Scarlette vehicle was towed. One of these stops w-as for lunch, the other for gas. The jury might, but the court could not as a matter of law. say that plaintiff negligently contributed to her injuries. Smith v. Stepp, 257 N.C. 422; Dinkins v. Carlton, 255 N.C. 137, 120 S.E. 2d 543.
Affirmed.